Congress lacked the constitutionally required quorum to pass the Consolidated Appropriations Act of 2023, a federal court ruled Tuesday. Accordingly, the Biden administration cannot enforce the new mandates imposed on Texas by the Pregnant Workers Fairness Act, which was part of the omnibus spending bill. However, Tuesday’s ruling left untouched the $1.7 trillion in appropriations, and with most of the money already spent, there is no real remedy for the Democrat-controlled Congress and White House’s blatant disregard for the Constitution.
Last month, federal Judge James Hendrix held a bench trial in State of Texas v. Dept. of Justice, a lawsuit brought by Texas Attorney General Ken Paxton against the Biden administration. In that lawsuit, Paxton challenged the constitutionality of the Consolidated Appropriations Act of 2023 based on the “quorum clause” of the U.S. Constitution, which is found in Article I and says:
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.
Texas’ lawsuit argued that when the House voted on the final version of the omnibus spending bill on Dec. 23, 2022, it lacked a quorum to conduct business because only 201 of the members were physically present that day, which was less than a majority of the total number of voting House members, 435.
The House, under the control of Democrats and then-Speaker Nancy Pelosi, opted, however, to apply a proxy-voting rule that allowed absent representatives to have other members of the House cast votes on their behalf. The result? The Consolidated Appropriations Act of 2023 passed with a tally of 225 yeas, 201 nays, and 1 present. President Joe Biden then signed the bill on Dec. 29, 2022, purporting to make it law.
On Tuesday, Judge Hendrix concluded “that, by including members who were indisputably absent in the quorum count, the Act at issue passed in violation of the Constitution’s Quorum Clause.” However, the federal court also held that Texas only had standing, or the right to sue, to challenge one portion of the act, namely the Pregnant Workers Fairness Act (PWFA).
While the Consolidated Appropriations Act of 2023 was a massive spending bill, Congress included several pieces of permanent legislation within the law, including the PWFA. The PWFA requires employers, including Texas, to provide reasonable accommodations to pregnant employees.
The court held that the compliance costs and burdens on Texas created an injury sufficient to allow Texas to sue for a remedy. Then, after holding that Congress lacked a quorum in passing the entire act, the court held that the Biden administration could not enforce the PWFA against the state of Texas and entered an injunction preventing the federal government from accepting or processing discrimination claims brought against Texas under the PWFA.
Judge Hendrix made clear that the injunction only reached the federal government and that his decision did not prevent an “employee from filing her own PWFA lawsuit against Texas.” Such claims should not succeed, however, for the same reason Texas prevailed: Under the quorum clause, the House lacked the requisite number of physically present representatives to pass the legislation.
Texas had also challenged a second portion of the spending bill that appropriated some $20 million to fund nonprofits and local governments to help connect illegal aliens released by Immigration and Customs Enforcement with various social services. While Texas claimed this appropriation further encouraged illegal immigration, thereby burdening Texas’ education, health care, and other costs, the court found the alleged injury too speculative. Accordingly, the court held Texas lacked standing to challenge that portion of the law.
Consequently, only one sliver of the massive appropriations bill saw its demise — and only for Texas. Tuesday’s holding is nonetheless significant because it exposes the disregard the Democrat-controlled Congress and executive branch hold for our Constitution.
The practical significance may also grow over time, though, as other states and employers bring similar quorum clause challenges to the constitutionality of the PWFA or other permanent portions of the Consolidated Appropriations Act of 2023. The Biden administration is unlikely to back down, however, and will surely appeal to the Fifth Circuit Court of Appeals and, after that, seek review by the United States Supreme Court.
But as I explained previously, from an originalist perspective, Texas’ theory is solid, making reversal unlikely. Watch then for the Biden administration to spin its unconstitutional conduct as a Republican attack on pregnant women — or “pregnant persons,” as Democrats are wont to say.
Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion, National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press. She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance. Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.
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